Supreme Court hears arguments for access to tribal comments

Supreme Court hears arguments for access to tribal comments

• High Court justices voice concerns over extending a FOI Act exemption to protect tribal communications to the federal government.

The U.S. Supreme Court heard arguments Jan. 10 in the only Freedom of Information case on the calender for this session. The case involved the Department of Interior’s denial of a request by the Klamath Water Users Protective Association for copies of written tribal recommendations to the department and the state of Oregon on how they should allocate water rights. The U.S. Court of Appeals in San Francisco (9th Cir) ruled that the government must disclose the records and the government appealed.

Assistant to the Solicitor General Malcolm Stewart told the court that the records should be considered exempt from the federal FOI Act under the intra- or inter-agency records exemption. He said a unique trust relationship exists between the United States and American Indian tribes. Stewart cited previous case law that had extended the exemption to records submitted to an agency by a senator and the president because the records aided the agency in conducting its business.

The justices peppered Stewart with questions about extending the inter-agency exemption. A prevailing theme of the questions suggested that applying the rule to the facts of this case would block disclosure of records that would be disclosed if anyone other than the tribes had submitted them. Justice Ruth Bader Ginsburg said this practice would look “like it is not even-handed.” The court record showed that the water users’ association’s comments to the government actually had been released to FOI requesters.

Justice David Souter noted that this case was factually distinct from the cases where the courts had extended the definition of “inter-agency” to cover senators and the president. He pointed out that in those cases the agency was not acting as an advocate or adjudicator as it was in the Klamath River water adjudication.

Andrew Hitchings, who argued on behalf of the water users’ association, reiterated the concerns voiced by Ginsburg and Souter that documents submitted by and sent to interested parties seeking a benefit from an agency could not be considered inter-agency.

Justice Stephen Breyer was the only justice who voiced concerns about the association’s argument. He acknowledged that extending the exemption to cover tribal communications would be a “stretch of the language,” but said he worried that if the court did not extend the definition, all records submitted by tribal interests would be opened up to the public.

The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief on behalf of the association, joined by the American Society of Newspaper Editors and the Society for Professional Journalists. The Reporters Committee said that an extension of the inter-agency definition would prohibit effective coverage of water allocation issues in which the public has a very strong interest. It also said that the public has an interest in knowing who outside the government is influencing its decisions.

(Department of the Interior v. Klamath Water Users Protective Assoc.; Counsel: Andrew Hitchings, Somach, Simmons & Dunn, Sacramento, Calif.) — CC

Related stories:

• Amicus brief in Dept. of the Interior v. Klamath Water Users Protective Association (12/13/2000)
• U.S. Supreme Court to hear case over access to tribal comments (11/2/2000)
• Interior Department must release tribal comments (9/20/1999)

© 2001 The Reporters Committee for Freedom of the Press

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